By Jeremy Pasternak

CAOC “Forum” – June 2005

Many superior courts have mediation programs that provide free mediators. The conventional wisdom is often, “You get what you pay for.” Litigators frequently avoid these private mediation programs, or just “go through the motions” with little hope of resolving their cases.

The San Francisco Superior Court, in conjunction with the Bar Association of San Francisco (BASF), has a program that works. Boasting a success rate of 80% in reaching settlement or making significant progress toward a later one, the program uses not one, but two, separate neutrals for nearly every case. The program is free (with only minimal administrative cost).

Critical to the program’s success is its mediation format: except in very few cases, two neutrals are provided, one from the plaintiffs’ side of the bar and one from the defense side. This format is abandoned only when a particularly experienced and respected mediator is assigned to the case.

“Free” mediators are often litigators hoping to break into mediation or just gain experience from another viewpoint. They aren’t professional mediators, and just as important, often aren’t recognized by the litigators in the case as having the skills to act as a neutral. How often do lawyers determine which name to cross off the list among the three submitted for judicial arbitration by simply figuring out who works for the defense or plaintiff firm?

The two-mediator format is particularly helpful, because each neutral speaks one side’s language. Therefore, the mediator is often in a better position to play devil’s advocate without being accused of not understanding or being biased.

This is not to say the ESP program does not also have stringent requirements for its neutrals: they must have at least ten years of litigation experience. Usually, they have much more. Many full-time mediators volunteer their time as a means of raising their own exposure. Among the 400 panelists are a variety of professional neutrals with JAMS. Because this is often not the case, the two-mediator format has an important part to play in the success of the program.

BASF’s Director of Alternative Dispute Resolution Services, Connie Dunning, states that when the program was being developed in 1986, BASF met with experienced trial lawyers and the Court to determine what type of a format would be welcomed. She describes the results of these meetings, “From these meetings came the model of providing insight from respected litigators, representing both sides of the Bar, in the hopes that it would offer a unique view of the case and open the door to compromise and settlement.”

Jeremy D. Pasternak has law offices in San Francisco. He is a member of the Forum Editorial Board.